Elysee v Ngo [2018] NSWDC 137

Elysee v Ngo [2018] NSWDC 137

The defendant was negligent because, when the plaintiff's test results and persistently poorly controlled hypertension indicated possible chronic renal disease, he failed to refer the plaintiff for specialist renal treatment. The Court accepted the evidence of Associate Professor Clyne and Dr Thornley, supported by aspects of Dr Burke's evidence, that earlier specialist referral in April 2009 would probably have delayed the plaintiff's progression to dialysis by about two years. The limitation defence failed because the actionable claim was not discoverable until the expert liability report was received, and proceedings were commenced within three years of that date. The plaintiff's...

Jurisdiction
Australia
Judgment Date
24 May 2018
Procedural Posture
Civil Claim for Damages in Medical Negligence/professional Negligence / Principal Judgment After Hearing
Outcome
Judgment for the plaintiff in the amount of $209,700, with the defendant to pay the plaintiff's costs.
Legal Topics
['general Practitioner Alleged Failure to Diagnose and Monitor Chronic Kidney Disease' 'failure to Refer for Specialist Renal Treatment' 'causation Under the Civil Liability Act 2002 (nsw)' 'peer Professional Opinion Defence' 'limitation Period and Discoverability' 'contributory Negligence' 'general Damages for Loss of Amenity and Enjoyment of Life']
['torts' 'negligence' 'professional Negligence' 'medical Negligence' 'limitation of Actions' 'damages'] ['general Practitioner Alleged Failure to Diagnose and Monitor Chronic Kidney Disease' 'failure to Refer for Specialist Renal Treatment' 'causation Under the Civil Liability Act 2002 (nsw)' 'peer Professional Opinion Defence' 'limitation Period and Discoverability' 'contributory Negligence' 'general Damages for Loss of Amenity and Enjoyment of Life']

Case Brief

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Procedural Posture

Civil Claim for Damages in Medical Negligence/professional Negligence / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the defendant general practitioner was negligent in failing to monitor, investigate and refer the plaintiff for specialist renal treatment when test results indicated possible chronic kidney disease.' "Whether any negligence caused or materially contributed to the plaintiff's loss by accelerating or failing to delay progression to end stage renal failure and dialysis." 'Whether the claim was statute barred under the Limitation Act 1969 (NSW).' "Whether the plaintiff's own conduct amounted to contributory negligence and, if so, the amount of any reduction in damages." "What damages should be awarded for the plaintiff's loss."]

Ratio Decidendi

The defendant was negligent because, when the plaintiff's test results and persistently poorly controlled hypertension indicated possible chronic renal disease, he failed to refer the plaintiff for specialist renal treatment. The Court accepted the evidence of Associate Professor Clyne and Dr Thornley, supported by aspects of Dr Burke's evidence, that earlier specialist referral in April 2009 would probably have delayed the plaintiff's progression to dialysis by about two years. The limitation defence failed because the actionable claim was not discoverable until the expert liability report was received, and proceedings were commenced within three years of that date. The plaintiff's...

Court Disposition

Judgment for the plaintiff in the amount of $209,700, with the defendant to pay the plaintiff's costs.

Orders

  • ['Judgment for the plaintiff in the amount of $209,700.' "The defendant is to pay the plaintiff's costs."]